Gadde & Gadde & Anor (No 3)

[2017] FamCA 731

FAMILY COURT OF AUSTRALIA

GADDE & GADDE AND ANOR (NO. 3) [2017] FamCA 731

FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT – Reasonable opportunity to present case – Case management principles

Elgin & Elgin (2015) FamCAFC 155
Reid & Reid (1995) FLC ¶92-649

APPLICANT: Ms Gadde

RESPONDENT: Mr Gadde

INTERVENOR: KK Lawyers

FILE NUMBER: SYC 417 of 2015

DATE DELIVERED: 27 April 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 27 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams

SOLICITOR FOR THE APPLICANT: Barkus Doolan

SOLICITOR FOR THE RESPONDENT: Self-representing

It is ordered that

1. The husband is to provide to the solicitors for the wife by midday Friday 28 April 2017 any changes to the values and comments that he wishes to make in relation to the balance sheet at separation and the current balance sheet in order to identify what matters are agreed and what matters are not agreed.

2. The solicitors for the wife will forward to my associate a consolidated copy of the new balance sheet by close of business Friday 28 April 2017. 

3. The wife has indicated that there is no objection to the husband’s brother and to Dr NN giving their evidence by telephone.

4. The solicitor for the wife will indicate to the husband by close of business 28 April 2017 whether Mr OO is required for cross-examination and if so, whether he can be cross-examined by telephone. 

IT IS NOTED THAT

1. The husband’s mother is required for cross-examination and it is anticipated that this will occur on Thursday 4 May 2017.

IT IS FURTHER ORDERED THAT

1. The husband has indicated that Mr PP, Mr QQ, Ms PP, Ms RR and Dr HH may be cross-examined by telephone and he requires Ms Y for cross-examination in person.

2. The husband will provide to the solicitor for the wife by 2pm on 28 April 2017 a Minute of the Orders that he seeks.

3. The husband is to provide to the solicitors for the wife by 5pm on Friday any further material he seeks to rely upon to establish that G’s father has been served with the process in these proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gadde & Gadde has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 417 of 2015

Ms Gadde

Applicant

And

Mr Gadde

Respondent

REASONS FOR JUDGMENT

1. I am going to make orders adjourning this case to commence on Monday with one variation relating to what might happen tomorrow afternoon.

2. This case involves an application to adjourn the final hearing of this matter completely to a new set of dates or, in the alternative, if that is not granted, to adjourn the case until Monday.  The application is made by the husband.  Both parties think that the matter may be able to be resolved within a five-day period.  The seven-day trial was set down some months ago. 

3. Further trial directions were given on 14 December 2016 at which stage the husband was legally represented.  At that point there was no indication on a specific request from the Court that further directions were required to prepare the matter for trial.  The husband has been represented by a series of lawyers.  Each has ultimately filed a notice of ceasing to act.  Most recently a notice of ceasing to act was filed by Mills Oakley, that notice being filed yesterday.  The husband sets out the circumstances of his retaining of Mills Oakley and the financial difficulties that he has experienced in retaining lawyers, particularly at paragraph 56 and following of his affidavit in support of the adjournment application. 

4. Although it is not in his affidavit, in his oral evidence he asserted that Mills Oakley had placed a precondition, being the requirement that the husband pay a further $25,000 to them in order to secure representation.  That assertion was challenged in part because it was not contained in the affidavit prepared for the adjournment application, being an affidavit that had been prepared by Mills Oakley.  It was also not supported by any document setting out the terms of such a request or requirement.

5. However, even accepting at face value what the husband says about the requirement that there be a further $25,000 being paid, he indicated that there were avenues available for him to pursue to obtain those funds, which he described as possible, but a tall order to obtain the funds.  He had not pursued these avenues because he had decided to take the course of seeking an adjournment.  The key issue for the seeking of the adjournment, which is identified in the husband’s affidavit and expressed by him today, was the inability of the selected counsel to prepare the trial in the timeframe that was available to him. 

6. The counsel that the husband sought to retain received the brief a short time ago and at [65] of the husband’s application after receiving the brief indicated that there was insufficient time to ready the matter for trial.  Key to the loss of representation for the husband was the short timeframe that his lawyers were given to work with.  Despite the financial difficulties that he has identified, he has not established that it was a bar to the retention of the lawyers at trial, but that what was the key hurdle was the timeframe.

7. The broad context of the application today to adjourn the trial is a history of non-compliance with procedural matters on the part of the husband or even attendance at court events on his part, being court events to deal with his applications.  The further context of the late retention of lawyers by the husband is seen in an email sent to the wife’s solicitors on 26 April 2017.  In that email, he indicated as follows:

   I note the property matter can still very easily be settled on a final basis if your client decides to be fair/reasonable at some point.  In the absence of that, I am very happy to run the property matter myself which was my original intention after Fox & Staniland ceased to act in February.

8. The further context is that even when the husband had not retained legal representatives and was acting on a self-representing basis, he continued to hold himself out as preparing the matter ready for trial rather than seeking an adjournment.  He did not context the proposition that he had sent in excess of 100 emails to the solicitors for the wife since 1 April 2017 and had not indicated in any of those emails his intention to seek an adjournment of the proceedings.  In terms of principles governing the application, I was taken to the case of Elgin & Elgin (2015) FamCA Full Court 155.  I was also referred to the case of Reid & Reid (1995) FLC ¶92 649.

9. There are two key matters to be considered here.  Both relate to the interests of justice.  The first is the necessity to ensure that Mr Gadde has a reasonable opportunity to present his case.  The test that may be applied then is where the failure to give the adjournment would be the denial of justice to Mr Gadde. The second issue flowing from the interests of justice is the impact upon the court listing and on other litigants to the Court.

10. The adjournment of this seven-day matter to another date, even if it was only for a further five days, would involve inevitable delays to other litigants before this Court, as that hearing time would not be available to them.  I have outlined the circumstances.  They do not tend to the conclusion that an adjournment is necessary to allow Mr Gadde to present his case.  In particular, the late lack of representation comes from circumstances which involved a late engagement of that legal representation.  In further circumstances where at least in relation to the property proceedings, Mr Gadde had been contemplating dealing with those unrepresented, in any event, and in circumstances where he had not indicated previously the need for an adjournment. 

11. The matters presented by Mr Gadde do not persuade me that it is necessary to allow him a reasonable opportunity to present his case to completely adjourn the proceedings.  The other matters raised by Mr Gadde involve whether an Independent Children’s Lawyer should be appointed.  I do not perceive that it is necessary in order to secure a proper consideration of the children’s case to appoint an Independent Children’s Lawyer.

12. It is a matter which, in any event, should have been raised in December if it was necessary.  However, looking at the facts raised in this case, particularly the matters raised by Mr Gadde as to his concerns about the allocation of parental responsibility, are not such as to make the appointment of an Independent Children’s Lawyer necessary.  Mr Gadde also raised the question of whether or not the matter could be run as a less adversarial trial.  The matter has been set down for some time as a joint trial of all issues and it is not appropriate to change that at this late stage. 

13. There was a further matter raised by Mr Gadde relating to disclosure.  The parties are in dispute as to whether or not adequate disclosure has taken place, that is, whether or not the wife has complied with her obligations of disclosure.  There is a dispute as to how far those obligations go, but there is a clear dispute between the parties as to whether or not there has been compliance.  In particular, Mr Gadde pointed to the late arrival of accounts relating to a trust for which the wife is a beneficiary.  There were other matters that he pointed to, including a trust for which she is an appointor.

14. There is a genuine question as to whether or not there is any obligation upon the wife to disclose documents relating to the trust, unless they are within her control, where she is merely a discretionary beneficiary.  Again, these were all matters that needed to be identified in December of last year when the query was made as to whether or not any further directions were required.  In relation to each of the disclosure matters that have been raised, there is no clear case of a failure to disclose established at this point, nor as to the effect, in any event, if there has been failure to disclose. 

15. If there has been non-disclosure, then at least on the information before me at present those disclosure matters are to be dealt with within the trial.  They do not constitute a justification for adjournment at this point.  However, despite the late engagement of legal representatives, Mr Gadde now finds himself even later without legal representatives.  There was no real opposition put to his application to adjourn so far as Monday, and I intend to grant that application to allow Mr Gadde an appropriate time to continue preparing for the trial.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 27 April 2017.

Associate: 

Date:  23 August 2017